In 2013, two judges made comments and rulings that attracted national and even international media attention; in 2014, both were disciplined after the judicial systems in the respective states had already corrected their rulings.

The Messiah judge

On or about May 29, 2013, Jaleesa Martin filed a petition to establish paternity of her son, naming Jawaan McCullough as the respondent. On the birth certificate, the mother listed the child’s name as “Messiah Deshawn Martin.” The mother requested that the court determine the child’s surname. On July 18, the petition was heard by Child Support Magistrate Lu Ann Ballew. During the hearing, the father requested that the child’s name be changed to “Jawaan Paxton McCullough, Jr.” The magistrate reserved ruling on the name change until August 8.

At the beginning of the hearing on August 8, the father again requested that the child’s name be changed to “Jawaan Paxton McCullough, Jr.” Later in the hearing, however, both parents agreed to the child retaining “Messiah” as his first name.

Contrary to the agreement of the parties, the magistrate ordered that the child’s name be changed to “Martin Deshawn McCullough.” In a statement of facts and reasons, the magistrate found that “‘Messiah means Savior, Deliverer, the One who will restore God’s kingdom. ‘Messiah is a title that is held only by Jesus Christ;’” and that “labeling this child ‘Messiah’ places an undue burden on him that as a human being, he cannot fulfill.” After the magistrate issued her ruling, the father requested re-hearing before a chancellor.

On August 9, during an interview with WBIR-TV, which was publicly broadcast, the magistrate again stated that “the word ‘Messiah’ is a title and it’s a title that has only been earned by one person and that one person is Jesus Christ;” and “it could put [the child] at odds with a lot of people and, at this point, he has had no choice in what his name is.”

On September 18, Chancellor Telford Forgety vacated the magistrate’s order as it related to the child’s name and ordered that the child’s first name remain “Messiah” and that his last name be changed to “McCullough.”

In October 2013, an investigative panel of the Tennessee Board of Judicial Conduct filed formal charges against Ballew. In January 2014, the 4th Judicial District terminated Ballew’s employment as child support magistrate.

In ruling that the child’s given name be changed and basing her decision as noted in the Statement supporting her decision, Magistrate Ballew inappropriately injected and applied her own religious beliefs in her decision, thus violating the Code of Judicial Conduct. We emphasize that Magistrate Ballew has every right to hold the very religious beliefs at issue in the case. However, the imposition of those beliefs by Magistrate Ballew upon the litigants is the inappropriate conduct involved in this case.

The hearing panel also found that the magistrate’s statements during her TV interview while the case was still pending violated the prohibition on judge’s publicly commenting on pending cases.

Chronological age

In October 2008, the state of Montana charged Stacey Rambold, a high school teacher, with sexual intercourse without consent with a 14-year-old freshman girl. The victim committed suicide in early 2010. Later that year, the state agreed to defer prosecution if Rambold admitted to one count of sexual intercourse without consent and agreed to enter sex offender treatment. However, the state reinstated Rambold’s prosecution after he was terminated from the treatment program.

In April 2013, the state and Rambold entered into a plea agreement under which Rambold agreed to plead guilty to one count of sexual intercourse without consent. The state sought a sentence of 20 years in prison with 10 years suspended. Rambold asked that all but 30 days be suspended.

In a hearing in August 2013, the judge sentenced Rambold to 15 years in prison with all but 31 days suspended and credit for one day served. Speaking from the bench about his rationale for the sentence, the judge stated, among other things, that Rambold’s victim was “a troubled youth, but a youth that was probably as much in control of the situation as [Rambold], one that was seemingly, though troubled, older than her chronological age.”

The judge later explained to the press that “it was horrible enough as it is just given her age, but it wasn’t this forcible beat-up rape.”

As later found by the Montana Supreme Court, the judge’s “sentence and rationale, particularly his remarks that the 14-year-old victim was ‘older than her chronological age’ and ‘as much in control of the situation’ as her 47-year-old teacher, sparked immediate public outcry,” and the Judge Standards Commission began receiving hundreds of complaints.

Shortly after sentencing, the judge sought to modify Rambold’s sentence, apparently having concluded that a statute required a minimum of two years in prison. The Montana Supreme Court blocked the judge’s attempt because he lacked authority to revise a sentence he had already issued, but the judge “nevertheless held a hearing, at which he made additional public remarks on the case and his actions.”

In February 2014, the Commission filed a formal complaint. The judge waived formal proceedings, admitted that he violated the code of judicial conduct, and consented to a public reprimand or censure. The Commission recommended censure. The judge had earlier announced that he would not run for re-election; his term is ending December 31.

Judge Baugh’s comments in open court in this case disregarded longstanding Montana law that a person under the age of 16 is legally incapable of consenting to sexual intercourse. His assertion that the victim was “older than her chronological age” is inconsistent with Montana law categorizing child victims of sexual offenses based on their chronological age alone, rather than on subjective perceptions of physical maturity and situational control. In addition, Judge Baugh’s later attempt to retract his sentence and rationale was inconsistent with Montana law. Finally, Judge Baugh made additional inappropriate public statements attempting to justify his actions. Through his unlawful sentence, inappropriate rationale, and subsequent public comments, Judge Baugh has eroded public confidence in the judiciary and created an appearance of impropriety, therefore violating the Montana Code of Judicial Conduct. He has caused Montana citizens, as well as others, to question the fairness of our justice system and whether prejudice or bias affected the outcome of the Rambold case. There is no place in the Montana judiciary for perpetuating the stereotype that women and girls are responsible for sexual crimes committed against them.

In September, Rambold was re-sentenced to 15 years in prison with five years suspended; he has appealed.

Every year, there are judges or former judges convicted of and/or disciplined for criminal conduct, both the types of crimes anyone can commit and the types of crimes unique to judges. See, e.g., Inquiry Concerning Sheehan(Florida 2014) (reprimand of a judge for driving under the influence); Ohio State Bar Association v. McCafferty(Ohio 2014) (indefinite suspension of a former judge’s law license based on her conviction on charges of lying to the FBI during an investigation of corruption among public officials and public employees); Office of Disciplinary Counsel v. Ballentine (Pennsylvania 2014) (one-year suspension of a judge’s law license following her guilty plea to three misdemeanor charges of tampering with public records for dismissing her own parking tickets); In re Carney(Pennsylvania 2014) ) (reprimand of a judge for a road rage incident; the judge had pled guilty to disorderly conduct); In the Matter of Ferguson, 762 S.E.2d 385 (South Carolina 2014) (reprimand of a former judge convicted on charges that, in return for sexual contact, he gave two women money and/or other benefits for the handling and disposition of matters involving them).

But 2014 was the first year a former judge was convicted for murder and sentenced to death. The murder was committed while he was still a judge, albeit suspended following his indictment on other charges.

May – July 2011: Kaufman County, Texas Justice of the Peace Eric Williams is arrested and indicted on one count of burglary and one count of theft by a public servant for taking computer monitors from a county facility. The case is prosecuted by Chief Assistant District Attorney Mark Hasse. The Texas State Commission on Judicial Conduct suspends Williams without pay.

March 2012: A jury convicts Williams. He is sentenced to probation and the loss of his office and law license. He appeals, and the sentence is stayed.

January 31, 2013: Hasse is shot and killed while walking from his car to the courthouse.

March 30, 2013: Kaufman County Criminal District Attorney Michael McClelland and his wife Cynthia are shot and killed in their home.

April – June 2013: Williams and his wife Kim are charged then indicted for capital murder in the deaths of Hasse and the McLellands. Kim Williams tells investigators that her husband shot the victims while she sat in the get-away car. The apparent motive is revenge for the theft and burglary prosecution of Williams by Hasse and McLelland.

July – October, 2013: An appellate court upholds Williams’ theft and burglary convictions, and the sentencing court permanently removes him from office.

December 2014: Williams is tried for the murder of Cynthia McLelland, convicted by a jury, and sentenced to death.

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Another major crime story involving judges continued in 2014 when a federal jury acquitted five former judges and one magisterial district judge of charges related to ticket-fixing on the Philadelphia Traffic Court.

November 2012: A report commissioned by the Chief Justice of the Pennsylvania Supreme (and leaked to the Philadelphia Inquirer) finds that ticket-fixing on the Philadelphia Traffic Court is routine, with “two tracks of justice — one for the connected and another for the unwitting general public” (http://media.philly.com/documents/trafficcourtstudy.pdf). The report notes federal authorities had been investigating since at least 2011.

January 31, 2013: Six judges, a traffic court administrator, and two businessmen are indicted on federal wire fraud and mail fraud charges for ticket fixing and favoritism. Three other judges are charged separately by information and plead guilty in early 2013.

June 2013: Legislation is passed and signed transferring the duties of the traffic court to a new division of the Philadelphia Municipal Court, although a constitutional amendment is still required to eliminate the traffic court because it is created by the state constitution.

May 27-July 23, 2014: During their jury trial, the defendants do not deny fixing tickets but claim the practice was not a crime because no money changed hands. The jury apparently agrees and on July 23 acquits all defendants of the wire fraud and mail fraud charges, although it convicts most of them of perjury before the grand jury or lying to federal investigators.

December 2014: The first defendant to be sentenced, former judge Robert Mulgrew, is sentenced to 18 years in prison. During sentencing, U.S. District Judge Lawrence Stengel states, “This case is about more than one lie before the grand jury,” and called it the “capstone on a . . . career marked by regular and willing participation in a pervasive system of corruption.” The second to be sentenced, former judge Thomasine Tynes, is sentenced to 24 months in prison and fined $5,000.

December 22, 2014:The Judicial Conduct Board files a complaint against Judge Michael Sullivan, one of the defendants in the federal criminal case, alleging that, based on ex parte communications, he gave special consideration in traffic court cases to defendants who were politically connected, family members and friends of traffic court judges, and family members and friends of court employees.

Inappropriate relationship between judges and litigants, attorneys, or court staff featured in many judicial discipline cases in 2014 (and not just those involving sex in chambers discussed in last week’s post).

• The Florida Supreme Court disbarred a former judge for a significant personal and emotional relationship with the lead prosecutor in a death penalty case that she failed to disclose in the case or during an investigation by the Judicial Qualifications Commission.

• The Louisiana Supreme Court suspended a judge for 30 days without pay for (taking an all-expenses-paid trip on a private jet to a hunting ranch with an attorney in a case shortly after the case was concluded, in addition to other misconduct.

• The West Virginia Judicial Investigation Commission publicly admonished a former magistrate for exchanging sexually explicit Facebook messages with a woman who appeared before him in court.

• The Florida Supreme Court ordered a judge to appear before it to be reprimanded for an “inappropriate relationship” with her bailiff. The stipulation stated that the judge and the bailiff had a “friendship” that “went beyond the fraternization that normally occurs in a professional workplace context” and noted that judicial colleagues had approached the judge “with concerns over the level of friendship with someone over whom she exercised supervisory authority.”

Not all of the inappropriate relationships were social

• The New Jersey Supreme Court suspended a judge for one month without pay for creating a conflict of interest by soliciting an attorney for legal counsel in a personal matter while knowing he was counsel of record in two matrimonial matter over which she was presiding, failing to immediately recuse from those matters, and aiding or passively complying with the attorney’s concealment of the conflict.

• The Texas State Commission on Judicial Conduct publicly reprimanded a former judge for, in addition to other misconduct, using his position and authority to bully, retaliate against, and punish attorneys four attorney for filing motions to recuse, grievances, criminal complaints, and removal actions against him and for their representation of his ex-wife or involvement in litigation involving his then-girlfriend.

• The North Dakota Supreme Court suspended a judge from office for one month without pay for persisting in his unsuccessful efforts to meet a court reporter in non-work settings that she reasonably interpreted as seeking much more than an “amicable working relationship.”

Like this:

Beginning last week and continuing through the end of the year, this blog will summarize the top judicial ethics and discipline stories of 2014. Last week’s post was “Commit the oldest sins the newest kind of ways”

Sex in chambers

It should go without saying that a judge’s chambers should not be treated like the back seat of a car or a motel room. But it had to be said at least four times in 2014. As the California Commission on Judicial Performance explained (twice): “Engaging in sexual intercourse in the courthouse is the height of irresponsible and improper behavior by a judge. It reflects an utter disrespect for the dignity and decorum of the court and is seriously at odds with a judge’s duty to avoid conduct that tarnishes the esteem of the judicial office in the public’s eye.” The Commission also noted that judges who engage in sexual intercourse in the courthouse may expose court staff to a hostile work environment.

Thus, in unrelated cases, the Commission censured two judges for engaging in sexual activity in the courthouse and related misconduct. The Commission censured one judge for engaging in sexual activity in his chambers on multiple occasions with two women; initiating contact with the district attorney’s office about the employment application of one of the women; and re-assigning cases to other judges after disqualifying himself when the second woman appeared. The Commission censured the second judge for engaging in sexual intercourse in the courthouse with a courtroom clerk, exchanging communications of a sexual nature with her during court proceedings, and misleading court administration and his superior judicial officers in an effort to prevent the clerk’s re-assignment.

In the other two cases, it was not only where the judge was engaging in sexual intercourse but with whom that constituted the misconduct.

The West Virginia Supreme Court of Appeals suspended Judge Jaymie Wilfong without pay until the end of her term and censured her for her extra-marital affair with the director of the community corrections program while he and/or his subordinate staff were appearing in cases before her and related misconduct. The judge conceded that she performed sexual acts with William Carter in her judicial chambers. At times when the judge and Carter were alone in chambers, court personnel found it necessary to knock on the door and interrupt so the judge could continue with court proceedings.

The Court acknowledged that the judge “probably, initially, intended her conduct with Mr. Carter to be nothing more than a private relationship between consenting adults,” but that she “carelessly and deliberately intertwined her affair with her judicial office, and in so doing seriously damaged public confidence in the integrity and impartiality of the judiciary.”

The Michigan Supreme Court removed Judge Wade McCree for engaging in a sexual relationship with a complaining witness in a case pending before him without recusing himself for several months from her case; engaging in numerous ex parte communications with her about the case; having sexual intercourse with her in his chambers; in violation of courthouse policies, permitting his mistress to enter the facility through an employee entrance without going through security, allowing her to remain alone in his chambers while he was on the bench, arranging for her to park her vehicle in an area reserved for judges, and sneaking her cell phone into the courthouse for her; and other misconduct.

Judge McCree has been a very popular subject of media reports since 2012, and most stories about him include a picture of him shirtless that had been sent to a reporter by the husband of the bailiff to whom the judge had sent it via cell phone. During an interview with the reporter, the judge stated, “There is no shame in my game.” In 2012, with his consent, the Michigan Supreme Court censured Judge McCree for bringing “shame and obloquy” to the judiciary by his flippant manner in the interview.

Inappropriate private comments by judges are not new to the internet age, but the ease of communication in electronic formats makes such comments more likely to become public. Several judicial discipline cases from 2014 illustrate the perils of a judge forgetting his (in all three cases) judicial position while sitting at the keyboard or tapping on a keypad.

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Based on a “report not contested” filed by the Judicial Discipline and Disability Commission, in September, the Arkansas Supreme Court removed Judge Michael Maggio from office for comments he posted as “geauxjudge” on “tiger droppings,” a public Louisiana State University sports fan forum page, and other misconduct. In March, after he was identified as “geauxjudge” by a blog called the Blue Hog Report, the judge had dropped out of the race for the Court of Appeals.

Since November 2005, the judge had made posts on the fan-site from his telephone, his personal home computer, or the office computer owned by the county and supplied to his circuit court office. The Commission found that the judge’s comments were not anonymous, stating “it took little time once the posts were sorted to find numerous facts in the posts that proved your actual identity.” The Commission gave examples of the hundreds of posts the judge made, including comments on a closed adoption by actress Charlize Theron; on pending cases; expressing his wish to be assigned cases involving attractive women, sexual subjects, and nude pictures; giving legal advice on how to beat a DWI charges; and with inappropriate gender, racial, and sexually related statements.

In its letter to the judge, the Commission stated that the comments were “much more than a problem of taste, decorum or personal opinion.”

It adds up to someone who demonstrates that he is unfit for the bench. Your actions offended and, even worse, gave rise to legitimate concerns that bias would overcome fairness and due process for a large number of potential litigants and their attorneys. Even the cases that you decided based purely on the facts and the law are now suspect by parties who look at the kind of statement you made. Whether it is race, gender, sexual orientation or specific subject matter, your comments made it impossible for you to be taken seriously as a judge who would be fair and impartial. You essentially disqualified yourself from the bench.

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The Pennsylvania Supreme Court relieved Justice Seamus McCaffery of his duties with pay pending an investigation of hundreds of sexually explicit e-mails he exchanged with members of the state attorney general’s office and other allegations. (The e-mails are part of a wider scandal involving the attorney general’s office, which became known as “porngate” and surfaced during a review of the investigation of Jerry Sandusky.) The extent of the justice’s involvement and the content of the e-mails have not yet been subject to fact-finding and may never be; after the Court’s order, Justice McCaffery resigned and agreed not to seek senior judge status or election to judicial office, and the Judicial Conduct Board dismissed its investigations.

In February 2012, then-judge Cebull, using his court e-mail account, forwarded to six friends a message under the subject line, “A MOM’S MEMORY.” The message was:

Normally I don’t send or forward a lot of these, but even by my standards, it was a bit touching. Hope it touches your heart like it did mine. A little boy said to his mother, Mommy, how come I’m black and you’re white? His mother replied, “Don’t even go there Barack! From what I can remember about that party, you’re lucky you don’t bark!”

At least one of his friends forwarded the judge’s e-mail to others, and it reached a newspaper reporter, who published an article quoting it. According to the article, the judge told the reporter that he sent the e-mail because it was “anti-Obama.” The judge is quoted as saying: “The only reason I can explain it to you is I am not a fan of our president, but this goes beyond not being a fan.” The Judicial Council noted the “nationwide media coverage” generated by the e-mail.

An investigation uncovered hundreds of inappropriate e-mails sent by the judge from his federal account. The Council found:

The majority of the emails were political in nature. Whether they were cast as jokes or serious commentary, the emails showed disdain and disrespect for liberal political leaders. A significant number of emails were race related. Whether cast as jokes or serious commentary, the emails showed disdain and disrespect for African Americans, Native Americans and Hispanics, especially those who are not in the United States legally. A similarly significant number of emails related to religion and showed disdain for certain faiths. Approximately the same number of emails concerned women and/or sexual topics and were disparaging of women. A few emails contained inappropriate jokes relating to sexual orientation. Finally, a large number of emails related to pending legislation or an issue that could come before the court, such as immigration, gun control, civil rights, health care or environmental matters.

The investigation found no evidence of bias in the judge’s decisions.

The Judicial Council concluded that the “racist and political February 2012 email, particularly when coupled with the hundreds of other emails regularly sent from Judge Cebull’s court email account” “reflects negatively on Judge Cebull and on the judiciary and undermines the public trust and confidence in the judiciary.” Stating “even if Judge Cebull intended his emails to remain private, he was indifferent to their potential negative impact,” the Judicial Council “strongly” condemned his e-mail practices and found that he had “violated his pledge ‘to uphold the integrity and independence of the judiciary.’” The Council also found that, although a judge may have political opinions and share those opinions in private among friends, “disseminating political opinions via a court email account to court staff and to individuals outside the judiciary contravenes” Canon 5. Finally, the Council stated the judge “compounded his mistake . . . by making anti-Obama statements to reporters who called for comment on the February 2012 email.”

Other than the February 2012 e-mail, the specific contents of the e-mails were not disclosed.